INSTITUTE FOR SECURITY STUDIES
12th October 1999

Open Democracy Bill Part V: Whistleblower protection
The Institute for Security Studies has had a long-standing interest in the issue of whistleblower protection, primarily in the context of its programmes to promote good governance and to fight corruption. As such, we welcome the fact that this issue is now being addressed by Parliament.

In the past fortnight, the Institute has hosted a number of seminars on the practical implications and potential effects of the proposed legislation. These seminars have included the Institute of Directors, the Public Protector, the Public Services Commission, the media and the Open Democracy Campaign Group. With the assistance of experts from the UK (Guy Dehn, Director of Public Concern at Work) and Ireland (Estelle Feldman, Trinity College, Dublin), we have also been able to consider the extent to which recent UK legislation (the Public Interest Disclosure Act 1998), draft proposals in Eire and the experience of other jurisdictions may be relevant to the position in the Republic.

Scope
Part V of the Bill focuses on how impropriety in public bodies can be deterred and detected by encouraging vigilance among those who work there, essentially by protecting those who raise concerns about impropriety from reprisals.

In all our seminars there has been a strong consensus that similar protection should exist for those who responsibly blow the whistle on wrongdoing in the private and voluntary sectors. We recommend that the Bill should be amended so that the whistleblower protection law applies across all sectors.

Against the background of section 32(1)(b) of the Constitution and in the light of risks identified in other parts of the Bill, we also recommend that Part V also applies to disclosures about public safety and environmental risks as defined in clause 1.

We consider that these two recommendations can be most readily achieved if clause 63(1) [page 74, lines 31-32] read

"disclosing evidence of a contravention of law, corruption, dishonesty or public safety or environmental risk by any person (in this Part referred to as 'wrongdoing) or serious maladministration"


Types of disclosure
We are concerned that the list of disclosures that will be protected may not prove realistic or workable. As one illustration, a whistleblower who reports a serious safety risk in a publicly run bus to the police or a relevant statutory body is not protected while one who goes to the media will be. While we recognise the important role the media can and should play in whistle-blowing, it is our view that they should not normally be seen as a first port of call.

We consider a more effective scheme would be one that recognised four types of disclosure:

  1. To obtain confidential advice, be it from a lawyer, union, professional body etc
  2. To raise the issue internally or with the person responsible
  3. To raise the issue with a designated body
  4. To disclose the issue more widely (including to the media).

While we are attracted to the approach in the UK legislation which provides slightly higher tests for each disclosure, in the context of this Bill we recommend that the tests for the first three disclosures are that the whistleblower is acting in good faith and with a reasonable belief. We do, however, recommend an additional test for wider, public disclosures.

Taking the approach of the Bill, we have the following comments:

Designated bodies
We consider that the list of bodies should be amended to include the Office of the Public Service Commission, the National Director for Public Prosecutions (in particular its Asset Forfeiture Unit) and any Special Investigation Unit. We also recommend that the Minister of Justice should, after consulting with those bodies designated on the face of the Bill, be able by regulation to designate additional bodies (e.g. banking regulators or bodies responsible for health and safety).

We consider that this can be most simply achieved by amending clause 63(3)(a) by adding [page 74, line 50]:

Wider disclosures
As indicated above, we are concerned that the approach in clause 63(3)(b) on media disclosures is unwieldy and too prescriptive. While we are attracted to the UK approach which draws on the case law on the law of confidence and the public interest, we also see the sense in the way the Bill seeks to address the issue in South Africa. Combining the best of these two approaches, we suggest the following amendment so that clause 63(3)(b) [page 76, lines 3-13] read:

(b) disclosed the information to some other person reasonably, having regard to

Internal Disclosures
We consider that this should be clarified to protect disclosures to the employer where there is no formal reporting procedure and where the disclosure is made to the person (be it a colleague, contractor or some other person) who is responsible for the wrong doing or impropriety. This can most readily be achieved by inserting into clause 63(3)(c), page 76, line 14 after the words "disclosed the information" the following:

"to his or her employer, to the person responsible for the wrong doing or impropriety or..."

Confidential Advice

We think it important that the legislation provides for the avoidance of doubt that disclosures for the purposes of seeking confidential advice are also protected. This could be from a lawyer, a union, a doctor, a professional body, charity or public interest organisation, or some other person - provided that the recipient is subject to an obligation of confidence. This will help ensure that people can safely get advice in what can be highly stressful circumstances and are less likely to make inappropriate disclosures. This can best be achieved by inserting a sub-clause (d) in clause 63(3), page 76, line 17:

"(d) disclosed the information for the purposes of seeking confidential advice be it from a lawyer, union, or otherwise".

Protection against Reprisals
We consider that the bill should explicitly provide that where a whistle blower is victimised in breach of the legislation, he or she should have a right to claim compensation for any loss or damage suffered as a result, subject to the normal rules on litigation. While we welcome the emphasis that clause 65 places on the whistle blower remaining in post, the reality is that in some cases this will not be realistic or in the whistle blower's best interests. Additionally in those cases where the victimisation is carried out by persons other that his or her employer, the remedies in clause 65 will not be appropriate. We consider that this approach can readily be achieved by inserting a new sub-clause after clause 65(1), page 76, line 41 which provides that:

"(1A) Any person who suffers a detriment in breach of this section or section 64 shall be entitled to bring a claim in the magistrates court or the high court for compensation for any loss or damage he or she has suffered (as if the claim were in delict)".

Criminal Sanctions
We are particular concerned about the scope and effect of clause 85(b). This provides that the whistle blower commits a criminal offence he if knew the information to be false, did not believe it to be true or did not know it to be true.

The effect is a whistle blower who acted in good faith and reasonably - though mistakenly - believed it to be true would risk a twelve-month prison sentence. If such a provision remained in the bill it would thwart the very purpose of the legislation and of Part V. In our view there is no need for any criminal sanction, as a whistle blower who is not acting in good faith and with a reasonable believe is not protected and so would face the loss of his job and career. In today's labour market, that alone is a real and heavy sanction against abuse of the scheme.

Finally, we note that no such provision exists in the UK legislation notwithstanding that country's traditional obsession with secrecy.

Accordingly, we recommend that clause 85(b) be deleted.

Conclusion
We hope that the above points will assist the committee. It is our firm view that the balanced and effective protection for responsible whistle blowers we recommend will prove to be a valuable tool:

As such, we will be grateful for the opportunity to give oral evidence to the committee. As I am at the international anti-corruption conference in Durban this week, it would greatly assist me if we could give evidence this Friday. Please could you contact me on my cell phone (083 266 8316) at your earliest convenience to confirm whether this is possible.

Lala Camerer

Head: Corruption and Governance Programme